13:0591(102)CA - INS, San Diego, CA and AFGE -- 1984 FLRAdec CA

[ v13 p591 ] 13:0591(102)CA
The decision of the Authority follows:

13 FLRA No. 102
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE
SAN DIEGO, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 8-CA-20110
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practice alleged in the complaint, and recommending
that it be ordered to case and desist therefrom and take certain
affirmative action. Exceptions to the Judge's Decision were filed by
the Respondent, and an opposition was filed by the General Counsel and
the Charging Party.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The Rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and Recommended Order.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the United States Immigration and Naturalization
Service, San Diego, California, shall:
1. Cease and desist from:
(a) Suspending from employment or otherwise disciplining Marvin
Foust, or any employee represented by the American Federation of
Government Employees, National Border Patrol Council, the employees'
exclusive collective bargaining representative, because of the conduct
of the collective bargaining representative during an examination of a
unit employee by a representative of the agency in connection with an
investigation where the employee reasonably believes that the
examination may result in disciplinary action against the employee.
(b) In any like or related manner, interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Rescind the March 1982 five day disciplinary suspension of Marvin
Foust, expunge any reference to such suspension from his personnel
records, reimburse him for the loss of pay he suffered by reason of the
suspension, and restore to him any right or privilege he may have lost
by such disciplinary action.
(b) Post, at its facilities, copies of the attached Notice on forms
to be furnished by the Federal Labor Relations Authority. Upon receipt
of such forms, they shall be signed by the Border Patrol Regional
Commissioner, or his designee, and shall be posted and maintained by him
for 60 consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such
Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director, Region
VIII, Federal Labor Relations Authority, in writing, within 30 days from
the date of this Order, as to what steps have been taken to comply
herewith.
Issued, Washington, D.C., January 13, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL
LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES
THAT:
WE WILL NOT suspend from employment or otherwise discipline Marvin
Foust, or any employee represented by the American Federation of
Government Employees, National Border Patrol Council, the employees'
exclusive collective bargaining representative, because of the conduct
of the collective bargaining representative during an examination of a
unit employee by a representative of the agency in connection with an
investigation where the employee reasonably believes that the
examination may result in disciplinary action against the employee.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL rescind the March 1982 five day disciplinary suspension of
Marvin Foust, expunge any reference to such suspension from his
personnel records, reimburse him for the loss of pay he suffered by
reason of the suspension, and restore to him any right or privilege he
may have lost by such disciplinary action.
(Agency or Activity)
Dated: . . . By: . . .
(Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Federal Labor Relations Authority, Region VIII, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, California
90071, and whose telephone number is (213) 688-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE, SAN
DIEGO, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 8-CA-20110
Patrick T. McDermott, Esq.
For the Respondent
E. A. Jones, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Sec.
7101, et seq.
Upon an unfair labor practice charge filed by the American Federation
of Government Employees, AFL-CIO on December 23, 1981, and amended
thereafter, against the United States Immigration and Naturalization
Service, San Diego, California (herein referred to as the Respondent),
the General Counsel of the Authority, by the Regional Director for
Region 8, issued a Complaint and Notice of Hearing on July 22, 1982
alleging Respondent violated section 7116(a)(1) and (2) of the Statute
by suspending an employee because of his Union representative's conduct
during an investigative examination.
A hearing on the Complaint was conducted on October 6, 1982 in San
Diego, California at which time the Respondent and the General Counsel
were represented by counsel and afforded full opportunity to adduce
evidence, call, examine and cross-examine witnesses and argue orally.
Briefs were filed by Respondent and the General Counsel.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from any evaluation of the evidence I
make the following findings of fact and conclusions of law:
Background and Events
At all times material herein the American Federation of Government
Employees, National Border Patrol Council (hereinafter referred to as
the National Council or the Union), has been the exclusive collective
bargaining representative of various of Respondent's employees including
Border Patrol Agents. The Union is comprised of various Locals,
including Local 2544 which, through its officers, deals with
representatives of Respondent in matters concerning working conditions
of employees attached to Respondent's Tucson Border Patrol Sector
Office.
In March 1981 Respondent's Office of Professional Responsibility
(herein OPR) was engaged in an investigation of allegations that
approximately 14 employees at the Tucson Border Patrol Station had
engaged in various acts of misconduct including falsification of
government documents, sexual misconduct, harassment towards aliens, and
theft of aliens' property. As part of the investigation OPR notified
various employees that it desired to interview them. /1/ On March 11,
1981 Marvin Foust, a Border Patrol Agent and Local 2544 President,
received a request from employees Curtis Hobbs and Bob Rogers to
represent them during their interview with OPR scheduled for March 13.
Thereupon Foust sought advice from Richard Bevans, AFGE National Border
Patrol Council President, Richard Webster, AFGE National Representative,
and David Nicholson, Regional Vice-president of the Council regarding
what he should do as the employees' representative during the
interviews. Foust was told he should insist upon taking a separate tape
recording of the interviews to assure the presence of an accurate
transcript of the interviews. Foust was further advised that, in their
opinion, Respondent would threaten the employees with discipline for not
proceeding with the interview unless the Union's conditions were met but
such disciplines would not occur and eventually Respondent would either
provide an immediate transcript of the interview or allow the tape
recording to take place without adverse repercussion to the employees.
Foust previously receive similar advice in February 1981 at a National
Border Patrol Council convention in San Antonio.
On March 13, 1981 Foust met with Hobbs and Rogers before their
scheduled interviews with OPR investigators. Foust related his prior
conversations with National Council and AFGE National representatives
and Hobbs and Rogers, although desirous of having the matter resolved so
they could give a statement to the OPR, nevertheless "went along" with
the course of conduct Foust indicated he would pursue.
Hobbs and Rogers met separately with OPR investigators on March 13
and Foust and another individual acted as the Union representatives for
the two employees. /2/ At each meeting Foust insisted that the Union be
allowed to make a separate tape recording of the interview. The OPR
investigators refused to permit the presence of a tape recorder other
than their own. /3/ However, they offered to make available the OPR
tape to the Union when a transcript of the interview was produced for
comparison or, if the Union insisted on having its own tape, after the
interview was concluded OPR would take custody of the Union's tape, seal
it, and return it when a copy of a transcript of the interview was later
provided to the Union. Foust conferred with the National Council and
was instructed to continue to insist on taping and retaining a tape of
the interview. After extensive discussion with the OPR agents during
which Foust maintained his prior position, no agreement was reached on
the matter and the meetings were terminated with Hobbs and Rogers being
rescheduled for interviews on March 16. /4/
Later on March 13 Foust was given a notice that he was to appear for
an interview with OPR investigators on March 16 concerning an alleged
altercation Foust had with another Border Patrol Agent in December 1980.
That same day Foust telephoned AFGE National Representative Webster who
agreed to represent Foust, Hobbs, and Rogers during their interviews on
the 16th.
On March 14, 1981 Foust appeared with Ron Evans as employee Theodore
Nordmark's Union representatives while Nordmark was being questioned by
OPR concerning the allegation of various Border Patrol Agents'
misconduct towards aliens, supra. /5/ As with the Hobbs and Rogers
interviews, Foust insisted on taking a separate tape recording of the
interview and the OPR agents refused, suggesting instead that the OPR
tape be made available to the Union later when a transcript was provided
or allowing Foust to make a tape recording but giving custody of the
sealed tape to OPR returnable when the transcript was made available.
However, the allegations concerning Nordmark involved sexual misconduct
and the matter was having serious adverse consequences on his marital
relationship. Nordmark, during a private meeting with Evans, Foust and
a Union attorney, strongly urged that he be allowed to proceed with the
interview. The Union representatives acquiesced and accepted the OPR
sealed tape procedure and the interview proceeded accordingly.
In the evening of March 15, 1981 Foust was informed by National
Representative Webster that he would be unable to attend the interviews
scheduled for March 16. Therefore, on the morning of March 16 Foust
appeared as Union representative for Hobbs and Rogers at the time of
their scheduled interviews. The OPR agents informed them that the
interviews would take place simultaneously in separate rooms. Since
Foust was the designated Union representative for both Hobbs and Rogers
the parties engaged in a discussion as to how the interviews could be
conducted. It was ultimately determined that Hobbs and Rogers would
have their interviews postponed until March 17 when another Union
representative would be available to represent the employees during
their simultaneous interviews.
Around noon on March 16 Foust asked Hobbs to represent him during his
OPR interview scheduled for that afternoon. /6/ Hobbs agreed and Foust
advised him to contact National Council officers Bevans and Nicholson as
to how Hobbs should conduct himself. Taping the proceeding was not
discussed at this time. Hobbs then contacted Bevans and was advised he
should insist on tape recording the interview and retain the tapes.
Bevans informed Hobbs that OPR would probably initially refuse taping
but eventually OPR would permit the interview to proceed and "nothing
would become of it." Hobbs mentioned that on March 13 OPR had produced a
copy of "a decision from the Labor Relations Board" which indicated that
the Union couldn't use a tape recorder in an interview. Bevans said he
had no knowledge of any such decision and instructed Hobbs that he
should insist on tape recording the proceedings. Hobbs also contacted
National Representative Webster and had a similar conversation. Hobbs
advised Foust of his communications with Bevans and Webster.
Later on March 16, 1981 Foust, Hobbs, and a second Union
representative, William Bruenell, met with OPR investigators Patrick
Comey and Paul Villanueva for Foust's interview. According to the
transcript of this meeting, /7/ after being advised that the object of
the interview was to take his sworn statement regarding the alleged
altercation Foust had with another Border Patrol agent, Foust was
advised of his right under the parties' collective bargaining agreement
to be represented by the Union or any other person of his choice. Foust
identified Hobbs as his Union representative and Bruenell as a concerned
third party. Comey noticed Hobbs was tape recording the proceeding and
asked Foust if he would agree to give the tape to OPR at the conclusion
of the interview, after which the tape would be sealed and subsequently
returned with a copy of his statement at some future date. Foust
replied that control of the tape recorder rested with Union
representative Hobbs. Asked if he would prefer that his Union
representative remove the tape recorder, Foust replied in the
affirmative. Comey then asked Hobbs to remove the tape recorder and
Hobbs refused contending that he required the tape recorder in order to
fulfill his functions as a Union representative. The transcript of the
interview reveals the following colloquy: /8/
"(COMEY): . . . I don't believe that . . . we can allow you to
tape record the proceeding if the subject of the investigation
desires that it be removed. You're here at his request. I'm sure
that if he wants the tape recorder removed he can request that.
(REPRESENTATIVE): He cannot compel me to turn it off as a
Union representative. I have my function to perform.
(COMEY): Would you prefer that your Union representative leave
the room?
A. No sir. I really wouldn't. I want Union representation . .
.
(COMEY): Well I think you guys should have worked this out
before you entered this proceeding, I, I wouldn't, I don't see how
it can possibly be fair to you that your Union representative is
tape recording it and you've requested that he turn it off.
A. Well the only reason I requested to turn it off is because
you want me to, you asked me to request that.
(COMEY): No I didn't. I said, would you like him to turn it
off.
A. Well I would like a copy, I would like to have the tape
recorder going, but . . .
(COMEY): Well, are you agreeing, will you agree as we pre-- ,
previously discussed when you were a representative for another
individual, to seal the tape and turn it over to us until your
statement is furnished to you?
A. I really can't do that. I would like to be able to do that,
but it's the Union's tape recorder and tapes. At that time when I
agreed I was functioning as a Union representative and at this
time, all I want
to do is give my statement in front of you sir."
Comey continued to demand that Hobbs desist from taping the interview
and Hobbs continued to decline, indicating that he had been instructed
by his Union to use the tape recorder. Comey commented that INS
"reserves the right to file an unfair labor practice allegation against
the Union" and reminded Hobbs of the "National Labor Relations Board"
decision dealing with taping interviews. /9/ Comey then addressed
Foust:
"(COMEY): Okay. Mr. Foust, do you understand that if you
decline to give your statement at the present time that you will
be compelled to give your statement by your supervisor and--
A. I want to give my statement now sir. Would you please go
forward with it sir.
(COMEY): We are not, we are not going to go forward with this
statement if the Union is tape recording this proceeding?
A. Gosh, all I want to do is just give my statement sir.
(COMEY): Okay. Would you ask your Union representative to
turn off his tape recorder?
A. Would you go ahead and turn it off there Curt?
(REPRESENTATIVE): Marv I, I can't turn it off as, as your
Union representative I feel that it's my obligation to tape this
interview for your own protection?
A. I'm sorry I can't compel him to, it's his job I guess.
(COMEY): Okay. You can take this however you want it. I'm
advising you that if you will not, if you will not or cannot make
your Union representative turn off this tape recorder, this
proceeding will be terminated at the present time as we will have
your supervisor serve you with a compelling notice to testify?
A. I just want to give your statement sir. That's all I want
to do.
(COMEY): We're not going to play any games. If this is what's
going to happen, your supervisor will compel you and if you will
again not give your statement without the tape recorder, if you
will not make sure your Union representative turns the tape
recorder off, then you will will be subject to disciplinary
proceedings, disciplinary proceedings up to and including removal,
do you understand that?
A. I understand sir. All I want to do is give my statement."
Comey provided Hobbs and Foust time to consider the matter off the
record. During a private discussion /10/ Foust told Hobbs he "hoped the
thing would work out" so he could give his statement since the charge
could easily be rebutted and asked Hobbs if he thought he was doing the
"right thing." Hobbs responded that he didn't know if it was right or
wrong but he had been advised to tape the interview, that was what he
was going to do. Foust replied, "If you've got to do it, you've got to
do it.
After 10 minutes Hobbs and Foust returned to the interview and Comey
asked Foust if he was prepared to proceed with a statement. Foust
indicated he was but but couldn't speak for Hobbs again declined to turn
off the tape recorder, explaining that he was under instruction from the
National Council as to how to fulfill his function as Foust's
representative. Comey indicated he assumed that the Nordmark
arrangement, supra, would be followed and Foust replied:
"A. Yes, when I was acting as representative. I was all for
that sir. As my function as a Union representative, I felt that
those conditions could very easily be met and today I just wish to
give my statement."
However, Hobbs stated he felt compelled to hold his position on the
matter. /11/ Foust was "reminded" that as an INS employee he had a duty
to answer specific questions relating to matters of official concern and
his failure to answer could be grounds for disciplinary action. /12/
Foust responded that he wanted to answer Comey's questions. Comey
stated that it was the position of the INS to construe Hobb's refusal to
turn off the tape recorder as a refusal by Foust to comply with the
conditions set forth for the interview and his supervisor would serve
him with a "compelling notice" to that effect. /13/ Foust responded
that perhaps he should change Union representatives and Comey replied it
might be a good idea, but that was Foust's decision. Foust indicated
that he'd try his best to lay the groundwork so he could give his
statement which was his desire. Comey again stated his position on the
presence of the Union's tape recorder and Foust replied: "I only wish I
had control over it, so I could give my statement." The parties then
adjourned.
During the adjournment, which lasted approximately 1 hour and 15
minutes, Foust was served with a "compelling notice." Hobbs, Bruenell
and Foust discussed whether Hobbs should continue with his position on
tape recording. Foust indicated he wished the problem could be "worked
out" and he could give a statement, and expressed concern over the
possibility of his being disciplined for not cooperating with OPR and
Hobbs replied that he was doing what Union officials instructed him to
do, and they assured him that no disciplinary action would be taken. In
any event, Hobbs telephoned National Representative Webster again and
was instructed to continue to insist on taping the interview. With
regard to the "compelling notice", Webster told Hobbs to have Foust
state on the notice: "My Union representative is making a conditional
refusal to turn off his tape recorder."
When the interview resumed Foust inserted the statement suggested by
Webster and added, "I am not being insubordinate" when signing the
"compelling notice." When asked by Comey if he had convinced his Union
representative to turn off the tape recorder, Foust replied that he
asked Hobbs to turn off the recorder so he could give his statement but
Hobbs would not comply, indicating he was making a "conditional
refusal." /14/ When Hobbs was asked what the condition was, he replied,
". . . if you turn your tape recorder off, I'll turn mine off." Comey
stated the condition was "utterly ridiculous" and told Foust that IRS ".
. . interprets your inability to convince your Union representative to
turn off his tape recorder as a refusal by you to answer the questions."
Foust again asked if OPR would allow him to give his statement, Comey
again stated that the IRS position on taking his statement and,
interpreting Foust's position in these circumstances to be a refusal to
give a sworn statement and after Foust restated his position that he did
not feel he was insubordinate since he was prepared to give a statement,
the interview was closed.
It is clear from the testimony, and I find, that while Foust and his
Union representative Hobbs did not intend to completely prevent
Respondent from interviewing Foust, they were convinced that Respondent
would ultimately acquiesce in the Union's position of allowing the Union
to tape the interview or provide an immediate transcription of the
statement. Although Foust frequently indicated to the OPR agents that
he wished to give his statement and at one point asked Hobbs to turn off
the recorder, he acknowledged in his testimony that he agreed with
Hobbs' position. Thus, Foust testified that if he was acting as his own
Union representative when being interviewed and had received the same
advice Hobbs received from Union officials, he would have taken the same
position Hobbs took.
On March 17, 1981, National Representative Webster, accompanied by
Foust and Bruenell, met with OPR investigators for the purpose of
representing Hobbs and Rogers during their scheduled interviews.
Webster insisted on representing both Hobbs and Rogers and using a tape
recorder. OPR resisted and, unable to resolve the problem, the
interviews were cancelled.
Later that day Foust, concerned that discipline might result from the
Union's insistence on tape recording, called AFGE General Counsel James
Rosa and discussed the situation. Rosa advised Foust to meet OPR's
conditions for conducting employee interviews. Thereafter, at least
three employee interviews were conducted without Union insistence on
retaining tapes of the proceedings. However, on April 9, 1981 when
Foust requested of Howard Dodd, head of OPR, San Diego, that Hobbs,
Rogers and he be permitted to give statements under the same procedure,
Dodd refused.
By letter dated November 27, 1981, Respondent notified Foust that it
was proposing to suspend him, alleging he engaged in improper conduct
during his altercation with a Border Patrol Agent in December 1980,
supra, and his refusal to cooperate on March 16, 1981 during an official
government inquiry. The allegation of Foust's refusal to cooperate in
the inquiry recited, inter alia, that Hobbs refused to turn off his tape
recorder; Foust had a responsibility to give a statement; Hobbs was
present "merely" as his representative and Foust did not attempt to
obtain Hobbs' cooperation; and Foust was served with a "compelling
notice" and continued to make no effort to cooperate thereby disrupting
the proceeding. The letter further recited the following provisions of
the Border Patrol Handbook, supra:
"When conducting personnel investigations, it is the general
practice of the Service to record the testimony of the persons
involved and of all witnesses in the form of sworn question and
answer statements. The purpose of each investigation is to
determine the facts fairly, without any preconceived intention of
finding either for or against the subject of the investigation.
When such an inquiry is conducted, it is the duty and
responsibility of each and every officer interrogated to answer
freely and frankly, without reservation, or equivocation.
"All employees of the Service are expected to testify regarding
matters relating to the performance of official duties or any
other matter pertinent to the situation under investigation. When
the employee refuses to testify, a determination of culpability or
innocence will be made through logical inference, examination or
witnesses, and review of other available evidence. Officers must
keep in mind that refusal to testify may be grounds for a charge
of insubordination."
Foust denied the allegations of improper conduct and failure to
cooperate in the investigation. In its final determination, Respondent
sustained only the allegation contained in the letter of November 27
concerning Foust's refusal to cooperate during the inquiry and Foust was
suspended from duty without pay for five days in March 1982.
Discussion
The General Counsel alleges that Foust was disciplined for Hobbs'
insisting on tape recording the interview. The General Counsel contends
that if the Union representative's conduct exceeded the bounds of
protected activity, the appropriate recourse would be to "confront" the
Union representative and not the employee being represented.
Respondent essentially contends that Foust and Hobbs were engaged in
a conspiracy to frustrate and block the OPR in its attempt to carry out
its legitimate function of interviewing employees during investigations.
Thus, Respondent reasons, because of his complicity in this attempt,
Foust should not be permitted to escape discipline by "hiding behind his
Union representative's activities."
The Complaint alleges and Respondent admits that the March 16, 1981
interview of Foust was an examination within the meaning of section
7114(a)(2)(B) of the Statute. /15/ However, it is not contested, and I
so conclude, that OPR's interview of Foust was a part of Respondent's
internal security practice. Indeed, the Authority in deciding the
negotiability of a union proposal in American Federation of Government
Employees, AFL-CIO, National Immigration & Naturalization Service
Council and U.S. Department of Justice, Immigration & Naturalization
Service, 8 FLRA 347, 363-364 (April 6, 1982), held a proposal which
would allow an employee's representative to record proceedings when the
agency recorded an interview of the employee to be nonnegotiable. In
deciding the matter the Authority considered the agency's claim, as
herein, that the practice of restricting the access to witnesses'
testimony obtained during investigations, including the testimony of
employees suspected of violations of law or regulation, was followed, ".
. . to prevent premature disclosure of information which might impede
its investigative goals, and to protect the privacy rights of employee
suspects from disclosure of unsupported allegations." The Authority
ultimately concluded that the proposal ". . . would deny the Agency's
authority under section 7106(a)(1) of the Statute to prevent
unauthorized disclosure of investigative material, i.e. determine its
internal security practices, and thus is outside the duty to bargain."
/16/
Clearly, OPR, when interviewing Foust, was carrying out its
legitimate function in investigating a matter which involved an
allegation that Foust had engaged in improper conduct. Foust was
required by the Border Patrol Handbook, supra, to cooperate with the
investigation by participating in the interview and failure to cooperate
could constitute insubordination. Nevertheless, Foust had a statutory
right to Union representation during the interview. However, while the
Union was privileged under the Statute to represent Foust during the
interview, Hobbs was not privileged to insist upon tape recording the
interview and thereby obstruct OPR in its conduct of the investigation.
Thus, if Foust so aligned himself with Hobbs' improper conduct in order
to prevent and deter OPR from taking his statement unless its acceded to
Hobbs' impermissible demand to tape record the proceedings then, in my
opinion, Foust would have participated in conduct unprotected by the
Statute and his disciplinary suspension would not have constituted a
violation of the Statute.
It is not infrequent in labor relations that the resolution of a
issue such as herein requires balancing or "working out an adjustment"
between the statutory rights of employees "and the equally undisputed
right of employers to maintain discipline in their establishments." /17/
In a situation not totally dissimilar to that presented herein, the
Authority held that ". . . flagrant misconduct by an employee, even
though occurring during the course of protected activity, may justify
disciplinary action by the employer. On the other hand, not every
impropriety committed during such activity is beyond the ambit of
protected activity." Department of the Navy, Puget Sound Naval Shipyard,
Bremerton, Washington, 2 FLRA 54(1979). /18/ Thus, the Authority has
utilized a "balanced approach" relative to the rights of employees,
employers, and unions when considering conduct which occurred at
meetings or interviews. Such approach, while respecting the Statutory
rights of employees and unions, nevertheless recognizes that such rights
must be viewed in the context of employer's rights and responsibilities.
/19/ However, it is clear from the cases cited herein that before
denying the protection accorded to such rights by the Statute, the
improper conduct which is alleged to negate Statutory protection must be
substantial when considering the employer's rights in the circumstances
of the situation. This is particularly true where the employee's right
to be protected is that of having a union representative present during
an interview where, as in Foust's case, disciplinary action may result
from the interview. Union representation during such a confrontation,
in my view, is one of the most important, essential, and valued rights
which are accorded an employee. /20/
Turning now to the particular facts under consideration herein, Foust
was President of the Local Union and from personal knowledge was well
aware of the National Council's policy in attempting to have Respondent
accede to allowing Union taping of OPR interviews. He was informed of
this policy at the February 1981 National Council convention and in
telephonic conversations with higher Union officials. Foust in fact
carried out this policy when OPR attempted to interview Hobbs and Rogers
on March 13. /21/
When Foust was being interviewed on March 16 he knew in advance what
his Union representative Hobbs' position would be on taping. Indeed,
Foust acknowledged that he privately agreed with this policy and the
record reveals he did little to dissuade Hobbs from his course of
conduct. Granted, Foust on two occasions during his aborted interview
asked Hobbs to turn off the Union's recorder, but at neither of the two
private discussions Foust had with Hobbs during his March 16 interview
breaks did Foust ask Hobbs to cease taping the interview. Rather, he
merely indicated to Hobbs, as he did during the recorded interview, that
he wished to give a statement and have the matter disposed of. Foust
could hardly be described as eagerly pressing his Union representative
to desist from taping. Indeed, the frequency of Foust's "pleas" to give
his statement while knowing what OPR's position was on the subject and
the notable lack of enthusiasm which Foust demonstrated in urging Hobbs
to discontinue taping, and an evaluation of the evidence as a whole,
portrays a certain disingenuousness on Foust's part. No doubt Foust was
anxious to give a statement, but only on the Union's terms.
On the other hand, I find that Foust was willing to give a statement
regardless of whether Hobbs taped the interview and would have given a
statement if OPR decided to proceed. Foust did not actively encourage
Hobbs to persist in taping the interview and was not in control of
Hobbs' conduct. Although Foust was the Local Union President, Hobbs
looked to higher Union officials for advice. Further, I do not find
that a conspiracy existed between Foust and Hobbs to frustrate OPR's
investigations. There is no record evidence of an actual agreement
between Foust and Hobbs as to what procedure should be followed during
the interview and it is apparent that Hobbs was free to decide a course
of action on behalf of the Union based upon his evaluation of the
circumstances as Foust did during the Nordmark interview when Foust was
acting as a Union representative.
As stated above, the right of an employee to union representation
during an interview as herein is a substantial Statutory right. If it
is permissible to punish an employee for the impropriety of his
representative during an interview, the chilling effect on the employee
could virtually extinguish the right. Holding an employee responsible
for the misconduct of his representative would have an enormous adverse
effect in deterring or dissuading an employee from utilizing a Union
representative. Few employees would risk representation knowing that
excesses or poor judgment on the part of a union representative might
well result in discipline of the employee. Therefore, balancing the
importance of the employee's right to representation against the
employer's rights and responsibilities in these circumstances, /22/ I
conclude that an insufficient nexus has been established to identify
Foust with the arguably improper conduct of his Union representative.
Given the nature of the Statutory right at issue herein, improper
conduct negating that right should not be lightly inferred. On the
state of the record in this case I conclude that insufficient evidence
exists that on March 16, 1981 Foust failed to cooperate during the
interview or otherwise engaged in improper conduct warranting
discipline. Rather, I find and conclude that Hobbs was disciplined for
the conduct of his Union representative during the interview of March
16.
Accordingly, in these circumstances I conclude that Respondent, by
suspending Foust for five days without pay, violated section 7116(a)(1)
and (2) of the Statute. I therefore recommend the Authority issue the
following:
ORDER
Pursuant to section 2430.20 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the United States Immigration and Naturalization
Service, San Diego, California, shall:
1. Cease and desist from:
(a) Suspending from employment or otherwise disciplining Marvin
Foust, or any employee represented by the American Federation of
Government Employees, National Border Patrol Council, the
employees' exclusive collective bargaining representative, because
of the collective bargaining representative during an examination
of a unit employee by a representative of the agency in connection
with an investigation where the employee reasonably believes that
the examination may result in disciplinary action against the
employee and the employee requests representation.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Rescind the March 1982 five day disciplinary suspension of
Marvin Foust, expunge any reference to such suspension from his
personnel records, reimburse him for the loss of pay he suffered
by reason of the suspension, and restore to him any right or
privilege he may have lost by such disciplinary action.
(b) Post at its Tuscon Border Patrol Sector facilities copies
of the attached Notice marked "Appendix" on forms to be furnished
by the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the Border Patrol Regional
Commissioner and shall be posted and maintained by him for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. The Regional Commissioner shall take
reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director of
Region 8, Federal Labor Relations Authority, 350 Figueroa Street,
10th Floor,
Los Angeles, California 90071 in writing, within 30 days from the date
of this Order, as to what steps have been taken to comply herewith.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: January 21, 1983
Washington, DC
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE
FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT suspend from employment or otherwise discipline Marvin
Foust, or any employee represented by the American Federation of
Government Employees, National Border Patrol Council, the employees'
exclusive collective bargaining representative, because of the conduct
of the collective bargaining representative during an examination of a
unit employee by a representative of the agency in connection with an
investigation where the employee reasonably believes that the
examination may result in disciplinary action against the employee and
the employee requests representation.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL rescind the March 1982 five day disciplinary suspension of
Marvin Foust, expunge any reference to such suspension from his
personnel records, and reimburse him for the loss of pay he suffered by
reason of the suspension, and restore to him any right or privilege he
may have lost by such disciplinary action.
(Agency/Activity)
Dated: . . . By: . . .
(Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate with the Regional Director,
Region 8, Federal Labor Relations Authority, 350 South Figueroa Street,
10th Floor, Los Angeles, California 90071, and whose telephone number is
(213) 688-3805.
--------------- FOOTNOTES$ ---------------
/1/ Such interviews are typically taken under oath and tape recorded
by OPR. At some time thereafter a transcript is made of the tape and
provided to the interviewee.
/2/ The Union's procedure was to have two representatives present at
such interviews. Foust was the principle representative at those
interviews.
/3/ Testimony by an OPR Criminal Investigator disclosed that OPR's
aversion to permitting the presence of a Union tape recorder was based
upon a "decision" by the Authority in the matter (see footnote 4), to
minimize the possibility of witness collusion or pressure to conform
testimony, to maintain the integrity of OPR's own recording, and to
avoid Privacy Act problems of disclosure.
/4/ Sometime on March 13 OPR provided Foust with a copy of a letter
from the Regional Director of the Authority's Region 3, dated July 1980,
and a letter from Richard A. Schwarz, Assistant General Counsel for
Appeals, dated February 27, 1981. Essentially the correspondence
indicated that the Regional Director and Office of the General Counsel
agreed that an unfair labor practice charge filed by the Union against
Respondent had been investigated and it was determined that Respondent's
conduct in issuing directives pertaining to forbidding employees or
Union representatives to use recording devices during investigative
interviews concerning job related or criminal conduct by employees did
not violate the Statute.
/5/ Ron Evans was the Union's principle representative at this
interview.
/6/ Hobbs was the local Union President prior to Foust taking office.
/7/ A verbatim transcript of the proceeding was received in evidence
as General Counsel Exhibit No. 2.
/8/ "A" indicates Foust's responses.
/9/ Comey obviously meant the matter covered by the correspondence
referred to in footnote 4, supra, and Hobbs understood the remark in
that context.
/10/ The findings concerning the off the record conversations
described herein are made from a synthesis of the credited testimony of
Hobbs and Foust.
/11/ Hobbs was aware of the procedure ultimately agreed to for taking
Nordmark's statement, supra.
/12/ The Border Patrol Handbook, infra, governing the conduct of
employees during personnel investigations states ". . . it is the duty
and responsibility of each and every officer interrogated to answer
freely and frankly, without reservation or equivocation."
/13/ A "compelling notice" is a memorandum from a supervisor to an
employee which, in effect, notifies the employee that cooperation with
an investigation is required and willful failure to cooperate in the
investigation can result in disciplinary action for insubordination.
/14/ Actually Foust did not make a specific request to Hobbs to turn
off the recorder during the break.
/15/ Section 7114(a)(2)(B) provides:
"(2) An exclusive representative of an appropriate unit in an agency
shall be given the opportunity to be represented at . . . any
examination of an employee in the unit by a representative of the agency
in connection with an investigation if -
(i) the employee reasonably believes that the examination may result
in disciplinary action against the employee; and (ii) the employee
requests representation."
/16/ Section 7106(a)(1) provides:
"(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of any
agency - (1) to determine the mission, budget, organization, number of
employees, and internal security practices of the agency . . ."
/17/ Republic Aviation Corporation v. NLRB, 324 U.S. 793, 797-798, 65
S.Ct. 982, 985(1945). Accord, U.S. Postal Service v. NLRB, 652 F.2d 409
(5th Cir. 1981), and cases cited therein.
/18/ This rationale accords with that followed in cases arising under
the National Labor Relations Act. See Union Carbide Corporation, 171
NLRB 1651(1968), in which the National Labor Relations Board in
footnote 1 held:
"Where, as here, the conduct in issue is closely intertwined with
protected activity, the protection is not lost unless the conduct is
egregious."
/19/ See Norfolk Naval Shipyard, 9 FLRA 458(1982), and U.S. Customs
Service, Region VII, Los Angeles California, 5 FLRA No. 41 (1981).
/20/ See NLRB v. J. Weingarten, Inc., 420 U.S. 251(1975), 95 S.Ct.
959.
/21/ Respondent's disciplining of Foust was unrelated to his conduct
at this meeting.
/22/ I also note that Respondent is not left without adequate means
to inform discipline and carry out its legitimate functions. If a union
representative is guilty of improper conduct during such an interview,
the union should be the object of whatever action the employer deems
warranted.